389

This paper examines The value of schol-arship (doctrine) in teaching the law to undergraduate students and its impli-cations for the future of legal education. I argue that law schools must approach legal scholarship from the distinct perspective of legal education and rethink the production of knowledge as an inclusive and pedagogical endeavour. Ultimately, law schools must recognize and value their undergraduate students’ contribution to legal scholarship.

First, I explore the role of legal schol-arship in legal education, by drawing from the vast body of “scholarship about scholarship” and identifying a troubling lack of interest towards the pedagogical value of legal scholarship. Next, I delve deeper into the connections between legal scholarship and pedagogy in order to expose its overlooked potential. Finally, I identify examples of new sites for legal scholarship: ones in which stu-dent empowerment can lead to a more fruitful, inclusive, and pedagogical use of scholarship in undergraduate legal education.

Ce TexTe se penChe sur l’importance de la doctrine juridique (legal scholarship) dans l’enseignement du droit aux étu-diants du premier cycle et ses impli-cations pour l’avenir de la formation juridique. Je soutiens que les facultés de droit doivent considérer la doctrine sous l’angle distinct de la formation juridique et repenser la production du savoir en tant que projet inclusif et pédagogique. En fin de compte, les facultés de droit doivent reconnaître la contribution de leurs étudiants du premier cycle à l’édi-fication du savoir juridique et y accorder l’importance qu’elle mérite.

J’explore en premier lieu le rôle de la doctrine dans la formation juridique en me fondant sur vaste corpus de « la doctrine au sujet de la doctrine », et sur ce que j’identifie comme un manque d’in-térêt préoccupant à l’égard de sa valeur pédagogique. J’examine ensuite plus en profondeur les liens entre la doctrine et la pédagogie afin d’en démontrer le potentiel souvent négligé. Je présente enfin de nouvelles avenues pour la doctrine juridique — des exemples qui illustrent comment l’habilitation étu-diante peut mener à une utilisation plus fructueuse, inclusive et pédagogique de la doctrine juridique au premier cycle.

Beyond the Textbook: Assessing the Value of Scholarship in Undergraduate Legal Education

Guillaume Laganière

390

CONTENTS

Beyond the Textbook: Assessing the Value of Scholarship in Undergraduate Legal Education Guillaume Laganière

Introduction 391

I. The Role of Scholarship in Undergraduate Legal Education 395A. The Audience for Legal Scholarship 396B. A Civil Law Tradition? 398C. A Matter of Educational Design 400

II. The Pedagogy of Legal Scholarship 404A. Shaping Students’ Understanding of Legal Scholarship 404B. Unravelling the Tensions Between Teaching and Researching 405C. Teaching and Researching as a Collaborative Endeavour 408

III. The Sites of Legal Scholarship 410

Conclusion 414

391

Beyond the Textbook: Assessing the Value of Scholarship in Undergraduate Legal Education

Guillaume Laganière*

INTRODUCTION

This paper examines the value of scholarship in teaching the law to under-graduate students, and its implications for the future of legal education.1 My point is simple: to the extent that legal scholarship matters in the processes of teaching and learning (which I think is the case), we must achieve a better conceptualization of its uses and misuses. The future of law schools as knowledge communities that “exist to collect, critique, pro-duce, and disseminate knowledge”2 rests on our ability to recognize the many forms that scholarship takes inside and outside law school. We must expand them even further and most of all, acknowledge that students play an important role in this process. In other words, we must consider schol-arship as an inclusive and pedagogical endeavour.

* DCL Candidate, McGill University; Associate in civil and commercial litigation at Woods LLP. I wish to thank Professor Shauna Van Praagh for her invaluable help and support throughout the drafting and revision of this paper, as well as the participants of the Legal Education Seminar held at McGill in Winter 2016 for the fascinating discussions we had on the future of legal education. I also express my gratitude to Mtre Étienne Chénier- Laflèche and the anonymous reviewers of the Ottawa Law Review for their comments. The usual dis-claimer applies.

1 In this paper, I focus on the teaching of core courses at the undergraduate level, especially in Quebec. As a result, terms such as “students” refer primarily to undergraduate students. Many of my arguments, however, also apply to more advanced parts of the undergraduate curriculum and even graduate legal education.

2 HW Arthurs, “The Future of Law School: Three Visions and a Prediction” (2014) 51:4 Alta L Rev 705 at 710 [Arthurs, “Three Visions and a Prediction”].

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The dominance of traditional3 forms of scholarship in undergraduate legal education arises partly from our failure to thoroughly address its peda-gogical implications. We can no longer afford to sidestep this endeavour. In an era of students’ mass-media interventions such as Aurélie Lanctôt’s,4 and student-led blogs such as Osgoode Hall’s The Court5 and University of Calgary’s ABlawg,6 we miss out on an opportunity to think about how undergraduate students can not only learn from different types of schol-arship but also actively experience, transform, and produce knowledge by themselves. This reflection opens up new ways of bringing together the undergraduate, graduate, and professorial communities by casting doubt over the common assumption that only graduate students and professors are expected to produce meaningful scholarship, using specific and widely accepted media and styles.7

Scholarship plays an important role in undergraduate legal educa-tion. Students rely on scholarship both as a source of legal principles and as a way to go beyond result-oriented approaches to the law. They use it to supplement a point left unclear by their professor, to make sense of diverging and seemingly contradictory authorities, or to bolster their initial thoughts and reactions to the legal principles they are introduced to. They also get involved in law review editing, write student notes,8 and act as research assistants — valued experiences in the prospect of securing a clerkship or other employment.

Identifying the functions of legal scholarship in the eyes of a law stu-dent is easy enough — but assessing its educational value is more difficult. All sources are not equal. Relying on traditional legal scholarship has ser-ious pedagogical implications that we too often overlook. Today, students in many law schools rely heavily on leading textbooks to make sense of the primary materials they are studying, such as provisions of the Civil Code9 or case law. While textbooks provide a critical analysis of key prob-lems, they are generally encyclopedic in nature, and they categorize issues

3 I explain what I mean by “traditional” legal scholarship in Part I of this paper, below.4 See e.g. Aurélie Lanctôt, online: Twitter, @AurelieLanctot <www.twitter.com>.5 Osgoode Hall Law School, The Court (blog), online: <www.thecourt.ca>.6 University of Calgary, Faculty of Law, ABlawg (blog), online: <www.ablawg.ca>.7 See Rosalie Jukier & Kate Glover, “Forgotten? The Role of Graduate Legal Education in the

Future of the Law Faculty” (2014) 51:4 Alta L Rev 761.8 See Andrew Yaphe, “Taking Note of Notes: Student Legal Scholarship in Theory and Prac-

tice” (2012) 62:2 J Leg Educ 259; Lindsey P Gustafson, “Blawgs Can’t Do it All: Let’s Save Short, Student-Authored Scholarship” (2012) 38:1 U Dayton L Rev 33.

9 CCQ.

Beyond the Textbook 393

in a way that leaves little room for thinking outside the box.10 Yet, the people who wrote and rely on them in the classroom may struggle to cut across the structural delimitations they have imposed upon themselves. Law reviews have more educational potential because they leave some room for critical thinking and imagination. But law reviews come with constraints of their own: some members of the judiciary criticize them for being mostly irrelevant to decision-making,11 while others blame them for

“saying nothing with an air of great importance.”12 Despite being somewhat of an overstatement, this criticism of law reviews nonetheless adds a ser-ious caveat to their educational value.

I do not argue that all scholarship used in undergraduate legal education is severely flawed. This blanket statement is unfair and counterproductive because it avoids a more fundamental problem: the materials that under-graduate students are exposed to in law school limit their understanding of what good legal scholarship looks like. This affects, in turn, the ways in which students produce legal scholarship themselves.

Mandatory classes on legal research and writing amplify this problem.13 These classes may require students to retrieve cases from online data-bases using the proper reference or to write basic “introduction-analysis- conclusion” pieces that comply with legal citation requirements. This sterile introduction to legal research affects students’ perception of good scholarship, especially those who will not pursue graduate studies in law but who will nonetheless produce (or at least engage with) legal scholar-ship throughout their career. It may simply be that “the law does not have great learned texts”14 and that law professors should consider secondary sources for what they are: literally, secondary sources.15 But if Weiler is

10 See Carel Stolker, Rethinking the Law School: Education, Research, Outreach and Governance (Cambridge, UK: Cambridge University Press, 2014) at 169–73.

11 See Adam Liptak, “The Lackluster Reviews That Lawyers Love to Hate”, The New York Times (21 October 2013), online: <www.nytimes.com>.

12 Fred Rodell, “Goodbye to Law Reviews” (1936) 23:1 Va L Rev 38 at 38 [Rodell, “Goodbye to Law Reviews”].

13 See Claude Thomasset & René Laperrière, “Faculties Under Influence: The Infeudation of Law Schools to the Legal Professions” in Fiona Cownie, ed, The Law School: Global Issues, Local Questions (Aldershot, UK: Dartmouth & Ashgate, 1999) 190 at 193–94.

14 Pierre Schlag, “Ten Thousand Cases, Maybe More — An Essay on Centrism in Legal Educa-tion”, online: (2002) 2 Stanford Agora 1 <www.agora.stanford.edu>.

15 The civil law and common law traditions attach variable importance to legal scholarship, embodied in the many, sometimes diverging meanings of the word doctrine. See e.g. Leonid Sirota, “(La) Doctrine” (15 February 2016), Double Aspect (blog), online: <www.doubleaspect.blog>. See also Part I (b), below.

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right that Canadian law schools should require their professors to demon-strate “capacity for innovative legal scholarship,”16 then we ought to think differently about how undergraduate students can benefit from it.

Important questions ought to be raised and answered. First, what does the production of meaningful scholarship entail? Is there a place for meaningful scholarship in teaching and learning the law at the under-graduate level? If so, what should it be? Can it also be found outside the classroom? These questions are hardly novel but the lack of attention paid to the pedagogy of legal scholarship leaves something to be desired. It also perpetuates old myths about the types of scholarship that are deemed to be valuable to society.

Drawing from the vast body of “[s]cholarship about [s]cholarship,”17 I explore in Part I of this paper the role of legal scholarship in undergradu-ate legal education. In Part II, I delve deeper into the connections between legal scholarship and pedagogy in order to expose its overlooked potential for the future of legal education. Finally, in Part III, I identify examples of new sites for legal scholarship and advocate for student empowerment in the production of legal knowledge.

A few preliminary observations before I move on: first, this paper results from my participation as a doctoral student in a seminar on legal education held at McGill University in 2016. Throughout the course of the seminar, we discussed the challenges and possibilities of legal education. We reflected on cutting-edge proposals involving, for example, the use of new technologies,18 experiential learning,19 and clinical legal education.20 The preoccupations I express in this paper must be understood as part of this broader conversation about the future of legal education. My hope is that scholars and educators pay greater attention to their students’ engage-ment with legal scholarship, and use it in a more fruitful, inclusive, and

16 Paul C Weiler, “Past and Future in Canadian Legal Education: Personal Reflections” in Neil Gold, ed, Essays on Legal Education (Toronto & Vancouver: Butterworth & Co (Canada), 1982) 1 at 5. Similarly, but perhaps more drastically, Heringa argues that law schools should have set criteria for evaluating research performance, such as a certain number of signifi-cant peer-reviewed publications or speaking engagements. See AW Heringa, Legal Educa-tion: Reflections and Recommendations (Cambridge, UK: Intersentia, 2013) at 176.

17 David P Bryden, “Scholarship about Scholarship” (1992) 63:3 U Colo L Rev 641. 18 See e.g. Peter Sankoff, “Taking the Instruction of Law Outside the Lecture Hall: How the

Flipped Classroom Can Make Learning More Productive and Enjoyable (for Professors and Students)” (2014) 51:4 Alta L Rev 891.

19 See e.g. Lorne Sossin, “Experience the Future of Legal Education” (2014) 51:4 Alta L Rev 849.20 See e.g. Deborah J Cantrell, “Are Clinics a Magic Bullet?” (2014) 51:4 Alta L Rev 831.

Beyond the Textbook 395

pedagogical way — a challenge faced in all forms of pedagogy, including the ones currently being studied, tested, or implemented in law schools.

Second, readers may notice the paradox of adopting a traditional medium and typically doctrinal style to argue that we ought to approach legal scholarship differently and more creatively. Indeed, this paper is not of the “meta” type.21 But I do not argue that the traditional, written forms of legal scholarship are useless — I simply urge to pay attention to their educational value. By doing so, my guess is that we will inevitably lean towards a broader conception of what counts as legal scholarship, includ-ing but not limited to, its traditional forms. This could benefit students in two related ways: by improving the learning materials that they use and by engaging them in the production of knowledge.

I. THE ROLE OF SCHOLARSHIP IN UNDERGRADUATE LEGAL EDUCATION

In this part, I explore the current role of legal scholarship in undergradu-ate legal education and the gaps left by the literature in this area. Conven-tional wisdom usually treats Fred Rodell’s classic essay — a vitriolic and sometimes painfully accurate critique of the law review format — as the obvious starting point for this discussion.22 I am interested, however, in the educational aspects of legal scholarship rather than its merits per se. I will therefore adopt a pedagogical perspective instead of formulating an all-out critique of legal scholarship. I will also go beyond classes dedicated to legal writing on the basis that students remain exposed to legal schol-arship throughout the curriculum, and not only during that formal intro-duction to legal writing.23

21 As a side note, I think an empirical survey of the use and effectiveness of legal scholarship in undergraduate classrooms would certainly push forward the conversation initiated in this paper. To my knowledge, no such survey has been conducted in Canada.

22 Rodell, “Goodbye to Law Reviews”, supra note 12. See also Fred Rodell, “Goodbye to Law Reviews: Revisited” (1962) 48:2 Va L Rev 279 (for Rodell’s own follow-up). Ironically, HeinOnline indicates that Rodell’s piece has been cited in more than 300 law review articles.

23 See e.g. Michelle Falkoff, “Using Fiction Workshop Techniques in First-Year Legal Writing Classes” (2012) 62:2 J Leg Educ 323 (for an alternative approach to legal writing classes).

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A. The Audience for Legal Scholarship

Legal scholarship comes in different venues, forms, modes, and media.24 Despite the lack of consensus on its contents, we still generally speak of doctrinal pieces published in law reviews, textbooks, and treatises as examples of “traditional” scholarship, and of empirical research, clinical writing, and critical studies as examples of “non-traditional” scholarship.25 Of course, all classifications oversimplify things and this one is no excep-tion. Arguably, “just about anything is a scholarly exercise.”26 For example, some professors use legal briefs to discuss cases, thus turning an advo-cacy tool into a scholarly exercise. Nonetheless, I think this classification accurately summarizes how most students would perceive the sources that are used in today’s legal education.

For better and for worse, teaching still primarily involves scholarship in written format,27 mainly through books and articles.28 The question then becomes whether those texts are useful to law students. Pick up any textbook29 pertaining to a foundational part of the undergraduate legal curriculum (torts, for example) and there is a good probability that some-where on the back cover or in the preface, the authors or the editors will have mentioned that their book “will be useful to law students.” Some

24 See Roderick A Macdonald, “Who’s Afraid of the Cyber-Law-Journal?” (2011) 36:2 Queen’s LJ 345 at 346 [Macdonald, “Cyber-Law-Journal”].

25 See Mary Kay Kane, “Some Thoughts on Scholarship for Beginning Teachers” (1987) 37:1 J Leg Educ 14. See e.g. Kathryn Zeiler, “The Future of Empirical Legal Scholarship: Where Might We Go from Here?” (2016) 66:1 J Leg Educ 78 (on the future of empirical legal scholarship).

26 See Macdonald, “Cyber-Law-Journal”, supra note 24. Macdonald cites “legal memoranda, facta, contracts, op-ed pieces, articles for the popular press, press releases, articles for non-legal professional journals (medicine, engineering, education, etc.) and even internet communication” as scholarly exercises (ibid at 356–57).

27 See Vincent Forray, “Flottements du droit: notes sur l’écriture juridique” (2013) 54:4 C de D 909 at 913; Daphne Barak-Erez, “Writing Law: Reflections on Judicial Decisions and Academic Scholarship” (2015) 41:1 Queen’s LJ 255 at 256. See e.g. Pierre-Gabriel Jobin,

“Un regard impressionniste sur le livre de droit: le numérique face au papier” (2016) 50:1 RJTUM 139 (for the implications of legal scholarship published in paper or electronic formats).

28 See Stolker, supra note 10 at 248. 29 Textbooks can be distinguished from casebooks, which I do not extensively discuss since

Quebec’s civil law institutions rarely use them. See, however, Part III below. See also Steve Sheppard, “Casebooks, Commentaries, and Curmudgeons: An Introductory History of Law in the Lecture Hall” (1997) 82:2 Iowa L Rev 547 (for a study of casebooks in American classrooms).

Beyond the Textbook 397

books even have a distinct student version.30 How, then, should we separ-ate the knowledge worth disclosing to students and the knowledge which should be restricted to other, more specialized audiences?

The mention that any given textbook will be useful to students is accur-ate — but only to some extent. On the one hand, textbooks have a certain pedagogical value. Most professors treat them as valuable introductions to legal principles.31 Those who understand the law through classification will value textbooks and other study aids because they help classify legal instances in a meaningful way.32 Kasirer writes that treatises “re-present a branch of the law as a coherent whole”33 such that readers eventually

“[come] to understand the law as partaking of a systemic whole.”34 More generally, Sunstein compellingly praises academic legal writing for its

“commitment to rigor, care, discipline, fairness, and sheer quality”35 and “intense concern for structure: [w]hy is this part here, rather than there? Does the argument flow? Is there undue repetition? Is there an internal logic?”36 This concern for structure carries pedagogical value for readers, who asks themselves the very same questions while engaging with the writer’s substantive point.

On the other hand, however, textbooks generally aim at multiple audi-ences — practitioners, judges, professors, activists, government officials, and sometimes all those with occupations that raise legal considerations. So, imagine being a law student in a jurisdiction where considerably more advanced audiences of lawyers, courts, and academics rely on the same handful of leading texts.37 The books conceived with each audience in mind

30 See e.g. Peter W Hogg, Constitutional Law of Canada: 2015 Student Edition (Toronto: Car-swell, 2015).

31 See WL Twining, “Is Your Textbook Really Necessary?” (1970) 11 J Society Public Teachers L 81 at 81. See also Peter Leyland & Terry Woods, “From Homogeneity to Pluralism: The Textbook Tradition Revisited” (1999) 33:1 L Teacher 18 at 18–20; Eric E Johnson, “A Popu-list Manifesto for Learning the Law” (2010) 60:1 J Leg Educ 41 at 51–52.

32 See Jacob Weinrib, “What can Kant Teach Us about Legal Classification?” (2010) 23:1 Can JL & Jur 203 at 203.

33 Nicholas Kasirer, “What is the Place of Les Obligations in Quebec Civil Law?” in Benoît Moore, ed, Mélanges Jean-Louis Baudouin (Cowansville, Que: Yvon Blais, 2012) 455 at 456 [Kasirer, “Les obligations”].

34 Ibid. See Angela Fernandez & Markus D Dubber, eds, Law Books in Action: Essays on the Anglo-American Legal Treatise (Oxford: Hart, 2012) (on treatises in the English tradition).

35 Cass R Sunstein, “In Praise of Law Books and Law Reviews (and Jargon-filled Academic Writing)” (2016) 114:6 Mich L Rev 833 at 842.

36 Ibid at 843.37 See e.g. Banks McDowell, “The Audiences for Legal Scholarship” (1990) 40:3 J Leg Educ

261; Erwin Chemerinsky, “Why Write?” (2009) 107:6 Mich L Rev 881 at 883 (on the various

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are scholarly tours de force. But they come at a heavy price for students who might struggle to find clear answers in these specialized texts.38 As one author points out, “the language of many first-year textbooks is the language of handbooks for practitioners, not written to keep the reader interested for 300 pages, but for reference purposes.”39 Meanwhile, law schools’ demand for materials capable of being used in multiple contexts (especially in first-year courses taught by several professors) hampers the creation of more innovative teaching materials.40

B. A Civil Law Tradition?

Before moving forward, I want to briefly discuss the notion of scholarship in the civil and common law traditions, and make some necessary distinc-tions. Civil law considers doctrine to be a formal source of law.41 Macdon-ald identified five functions of doctrine in civil law:

[L]a doctrine … performs five main functions. It has a puzzle-solving or explicative function. It also provides a critical perspective on legal postu-lates in order to discern their fundamental premises. Further, la doctrine examines the evolution of both legal norms and their social functions, suggesting new formulations and unprecedented applications of existing rules. Again, it elaborates the logical and ideological structure of a given

audiences for legal scholarship). See also Sunstein, supra note 35 (arguing that most aca-demic writing is not intended for practitioners).

38 See Twining, supra note 31 at 81 (who argues that textbooks are not indispensable and tend to hamper the kind of critical thinking that students should strive to achieve in law school).

39 Stolker, supra note 10 at 172.40 See Bryden, supra note 17 at 646–47; McDowell, supra note 37 at 267. Jobin also points out

that larger classes and budget cuts in law schools mean that professors have less time to publish their research (Jobin, supra note 27 at 145–46).

41 I use the word doctrine in the sense of legal scholarship, rather than the “set of rules and principles that can be derived or inferred from judicial decisions” (Sirota, supra note 15). See also Édith Guilhermont, “La contribution des blogues juridiques à la connaissance, à la critique et aux transformations du droit” (2016) 62:1 McGill LJ 157 (“[d]ans le cadre de notre propos, on admettra une équivalence entre la notion de doctrine juridique et celle de legal scholarship dans la mesure où toutes deux renvoient à la littérature savante sur le droit qui émane, sinon exclusivement du moins très largement, des professeurs et cher-cheurs en droit” (at 186–87). Guilhermont argues that there is an equivalence between the notion of la doctrine juridique and that of legal scholarship insofar as both relate to the scholarly literature on the law that emanates if not exclusively, then in large part, from law professors and researchers) [translated by author].

Beyond the Textbook 399

area of the law. Finally, it integrates various sources of legal justification into their political and social context.42

For historical and epistemological reasons, civil law scholarship benefits from an elevated status when compared to its common law counterpart43 (although this elevated status itself varies considerably among particular disciplines).44 This divide leads to substantive differences not only in the contents of legal scholarship but also in its modes of production, as evi-denced by the low involvement of students in the management of Quebec or France’s law reviews, for example.45 In this regard, McGill and its stu-dent-run law journal stands out as a notable exception.46

In my experience, however, these differences may not matter as much from a pedagogical standpoint. I graduated with a civil law degree from a Quebec school where most classes required thorough engagement with scholarship in order to perfect one’s understanding of legislation and cases. I then pursued graduate studies in a common law jurisdiction. There, my syllabus featured similar materials (along, of course, with more sophisticated scholarship we are accustomed to seeing in a graduate-level course). I relied on these materials a great deal to understand unfamiliar English cases in the law of restitution or the conflict of laws.47 My point is that while scholarship may have different roles and contents in these two legal traditions, students nonetheless use them for similar purposes in the classroom: simply put, to make sense of the law.

42 Roderick A Macdonald, “Understanding Civil Law Scholarship in Quebec” (1985) 23:4 Osgoode Hall LJ 573 at 589 [Macdonald, “Civil Law Scholarship”].

43 See Jean Leclair, “A Review of Law Reviews: Comments of a Contented Victim” (2005) 31:1 Queen’s LJ 385 at 397. See also ibid at 577; Macdonald, “Cyber-Law-Journal”, supra note 24 at 38–89; Catherine Valcke, “Legal Education in a ‘Mixed Jurisdiction’: The Quebec Experi-ence” (1995) 10 Tul Eur & Civ LF 61 at 94–120. See generally Nicholas Kasirer, “Of combats livrés and combats livresques” (2004) 19:1 CJLS 153 [Kasirer, “Combats livresques”]; The Hon-ourable Pierre J Dalphond, “La doctrine a-t-elle un avenir au Québec?” (2008) 53:3 McGill LJ 517; Sylvio Normand, “La littérature du droit comme élément structurant du champ juridique québécois: une perspective historique” in Ysolde Gendreau, ed, La doctrine et le développement du droit (Montreal: Themis, 2005) at 1.

44 Private international law, for example, is known to be particularly influenced by academic writing. See Nicholas Kasirer, “Note préliminaire” in Gérard Goldstein & Ethel Groffier, Droit international privé: Théorie générale (Cowansville, Que: Yvon Blais, 1998) at ix.

45 See Leclair, supra note 43 at 397. 46 See Stolker, supra note 10 at 237–42 (for a discussion of different approaches to law

reviews’ editing process).47 See Graham Virgo, Principles of the Law of Restitution, 3rd ed (Oxford: Oxford University

Press, 2015); Richard Fentiman, International Commercial Litigation, 2nd ed (Oxford: Oxford University Press, 2015).

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C. A Matter of Educational Design

Having identified the educational potential and pitfalls of traditional forms of scholarship in both legal traditions, what can we do about it? In his book on legal education, the rector and president of Leiden University (and former dean of Leiden’s law school), Carel Stolker, vigorously criti-cizes books assigned in first year:

First-year books in the tradition of continental law easily run to 300 pages, sometimes published in formats which could best be described as ‘non-us-er-friendly’. It is as if studying law is tantamount to suffering. How far a student gets in such a book, I have often wondered: fifty pages, a hundred?48

Stolker is particularly interested in the educational design of scholarship. Students, he says, need “reliable maps” and “these maps are capable of considerable improvement.”49 He explains that the features of a good text-book are:

[A] well-considered pedagogical structure, a clear connection with the curriculum as a whole and to the psychology and learning styles of 18-year old students, written in a plain language, inspirational and aspirational, and having a strong relation to legal practice.50

For Stolker, the problem with the inconsistent quality of teaching materials lies in the lack of feedback regarding their effectiveness, something that

“contrasts sharply with our scientific work.”51 As I explain below, a quick glance at the scope of the research conducted in this area supports Stolk-er’s point that the literature has obscured the pedagogy of legal scholarship.

Legal scholarship has been under scrutiny for decades, particularly in the United States.52 Critics generally point to academic isolationism,

48 Stolker, supra note 10 at 170. But see E Johnson, supra note 31 (who argues that textbooks make learning black letter law easier and leave students more time for pedagogical inqui-ries such as problem-solving).

49 See Stolker, supra note 10 at 173.50 Ibid.51 Ibid. 52 There have been many influential American critiques on this point. See e.g. Rodell, “Good-

bye to Law Reviews”, supra note 12; Harry T Edwards, “The Growing Disjunction Between Legal Education and the Legal Profession” (1992) 91:1 Mich L Rev 34; Richard A Posner,

“Legal Scholarship Today” (2002) 115:5 Harv L Rev 1314; Harry T Edwards, “Another Look at Professor Rodell’s ‘Goodbye to Law Reviews’” (2014) 100:7 Va L Rev 1483. On Edwards’s views, see his interview with Ronald KL Collins, “On Legal Scholarship: Questions for Judge Harry T Edwards” (2016) 65:3 J Leg Educ 637.

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emphasis on glamorous subjects, lack of empirical studies, bad writing style, and politically conformist research agendas as critical flaws in today’s scholarship.53 Kahn, in particular, emphasizes the doctrinal nature of all scholarship by showing how it replicates the tension between rea-son and will as the “two fundamental values of the legal order … equally committed to a reformist vision of the scholar’s rule.”54 For Kahn, this reformist vision stems from the conflation of law as an object of critique and a source of authority — in other words, the collapse of subject and object.55 He argues that the legal academic must entirely give up the pro-ject of reform in order to better understand the law as a social construct that is not inevitable.56

Most of this criticism informs legal education, but only in a broad sense. For example, Kahn’s account of the reformist agenda of all legal scholarship incriminates legal education to the extent that it prepares stu-dents for careers in the judicial and legislative branches, in which “they argue that their position is the path of reform.”57 In fact, most criticism of legal scholarship defines law schools’ mission in one way or another by questioning whether the education they provide is (or should be) distinct-ively liberal as opposed to vocational or technical.58 It also clarifies the extent to which “students in a professional school [should] acquire and subsidize knowledge about the role of law that will have little immediate relevance to their practice.”59 No matter how sophisticated it is, however, this criticism rarely aims directly at how teaching materials affect students’ learning, how professors can improve learning by using better materials, or how students get involved in the production of legal scholarship.

Research on the advantages and pitfalls of the law review format suf-fers from similar shortcomings because it tends to systematically fall under two discrete topics: judiciary reliance on law reviews (or lack thereof)60

53 See Bryden, supra note 17; Macdonald, “Cyber-Law-Journal”, supra note 24 at 382. 54 Paul W Kahn, The Cultural Study of Law: Restructuring Legal Scholarship (Chicago: Univer-

sity of Chicago Press, 1999) at 22. 55 Ibid at 27, 29.56 Ibid at 30. See Kasirer, “Combats livresques”, supra note 43 at 167–68; Robin West, “The Con-

tested Value of Normative Legal Scholarship” (2016) 66:1 J Leg Educ 6.57 Kahn, supra note 54 at 19.58 See W Wesley Pue, “Legal Education’s Mission” (2008) 42:3 L Teacher 270.59 Deborah L Rhode, “Legal Scholarship” (2002) 115:5 Harv L Rev 1327 at 1330.60 See e.g. JE Côté, “Far-Cited” (2001) 39:3 Alta L Rev 640 (in Canada); Brent E Newton,

“Law Review Scholarship in the Eyes of the Twenty-First Century Supreme Court Justices: An Empirical Analysis” (2012) 4:2 Drexel L Rev 399 (in the United States).

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and student involvement in their editing.61 The first topic ignores most educational considerations by assuming that the judiciary is the primary audience for legal scholarship. We sometimes criticize this assump-tion62 — but the tendency to direct our advocacy efforts towards the judi-ciary rather than the legislative or executive branch indicates it is still very much alive.63

The second topic is without a doubt relevant to legal education.64 Stu-dent editors learn key legal skills associated with the process of “reading, evaluating, critiquing and editing legal texts”65 in addition to important managerial skills that come with the task of running an academic institu-tion.66 But involvement in law reviews is optional and our understanding of students’ relationship with the production of legal knowledge remains limited if we approach it from that perspective.

We, Canadians, also tend to overlook the pedagogical implications of legal scholarship, all the more considering that the debate on the value of law reviews comes mainly from the United States.67 Fortunately, the topic of legal scholarship has benefitted from the insights of the late Roderick

61 See e.g. James Lindgren, “An Author’s Manifesto” (1994) 61:2 U Chi L Rev 527 (who famously wrote that “[o]ur scholarly journals are in the hands of incompetents” at 527); Richard A Posner, “The Future of the Student-Edited Law Review” (1995) 47:6 Stan L Rev 1131; Natalie C Cotton, “The Competence of Students as Editors of Law Reviews: A Response to Judge Posner” (2006) 154:4 U Pa L Rev 951.

62 See Chemerinsky, supra note 37 at 886ff.63 See Macdonald, “Cyber-Law-Journal”, supra note 24 at 387–88. See also Kahn, supra note 54.

Kahn would probably argue that scholarship aimed at these two audiences is essentially the same:

Both courts and legislatures pursue a practice characterized by reform. Whether the scholar proposes reform as a new legislative product or as a judicial interpretation depends on the positive law that is targeted, the character of the proposal, the insti-tution to which it is addressed, and the limits of possible perception of popular will within the particular context (ibid at 19).

64 See Harold C Havighurst, “Law Reviews and Legal Education” (1956) 51:1 Nw UL Rev 22; Neil Craik, Philip Bryden & Katie Ireton, “Law Review: Scholarship and Pedagogy in Cana-dian Law Journals” (2011) 36:2 Queen’s LJ 393 at 435–39; Karen D Thornton, “Using the Stu-dent-Edited Law Review to Teach Critical Professional Skills” (2016) 40:2 J Leg Profession 163 (on pedagogy and student involvement in law reviews). See also infra notes 105–106.

65 Macdonald, “Cyber-Law-Journal”, supra note 24 at 376–77.66 See Craik, Bryden & Ireton, supra note 64 at 436; Josephine (Jo) R Potuto, “Whose Article

Is It Anyway?: Student Editors and Law Reviews” (2016) 49:3 Ind L Rev 609 at 617. 67 See Macdonald, “Cyber-Law-Journal”, supra note 24 at 352; Macdonald, “Civil Law Scholar-

ship”, supra note 42.

Beyond the Textbook 403

Macdonald,68 in addition to the Arthurs Report69 and several academic symposia.70 Yet Parker’s “protest … about the lack of Canadian content in the discussion of legal scholarship”71 still lingers, perhaps due to a certain resistance from academics to engage in self-scrutiny or a fear of offending colleagues.72 This is unfortunate simply because the people we identify as the primary producers of legal knowledge are in a better position to safeguard their students’ stake in educationally sound legal materials than private corporations subject to the demands of the publishing market.73

Going back to Stolker’s point, I believe that the lack of attention paid to the pedagogical design of legal scholarship has negative impacts on under-graduate students’ learning.74 If we accept that the future of research is inextricably linked to that of legal education generally75 and that encour-aging good scholarship prepares students for their professional careers,76 then we must start by paying greater attention to the connections between scholarship and pedagogy. I take up this challenge in Part II of this paper.

68 Macdonald, “Civil Law Scholarship”, supra note 42.69 Consultative Group on Research and Education in Law, Law and Learning Report (Ottawa:

Social Sciences and Humanities Research Council of Canada, 1983). See HW Arthurs, “To Know Ourselves: Exploring the Secret Life of Canadian Scholarship” (1985) 23:4 Osgoode Hall LJ 403; Roderick A Macdonald, “Still ‘Law’ and Still ‘Learning’?” (2003) 18:1 CJLS 5 at 10–14 [Macdonald, “Law and Learning”] (for aspects of the Arthurs Report pertaining to legal scholarship).

70 See e.g. John D McCamus, “After Arthurs: A Preface to the Symposium on Canadian Legal Scholarship” (1985) 23:3 Osgoode Hall LJ 395; Bruce Ziff, “The Canadian Law Review Experience: Introduction to the Symposium” (2001) 39:3 Alta L Rev 61; Craik, Bryden & Ireton, supra note 64; “The Responsibility of Doctrine” (The Paul-André Crépeau Centre for Private and Comparative Law Colloquium for the 40th Anniversary of the Crépeau Centre delivered at the Faculty of Law, McGill University, 12 February 2016) [unpub-lished]; Georges Azzaria, ed, Les nouveaux chantiers de la doctrine juridique: Actes des 4e et 5e Journées d’étude sur la méthodologie et l’épistémologie juridiques (Cowansville, Que: Yvon Blais, 2016).

71 Graham Parker, “Legal Scholarship and Legal Education” (1985) 23:4 Osgoode Hall LJ 653 at 662.

72 See Rhode, supra note 59 at 1327.73 See e.g. Gary P Rodrigues, “Emond — A Fresh Voice in Legal Publishing” (9 March 2016),

Slaw (blog), online: <www.slaw.ca> (for a brief account of the forces at work in the legal publishing market). See also Stolker, supra note 10 at 248–59.

74 See also E Johnson, supra note 31 (who notes that while “critics have decried the emphasis on developing legal analytical skills – the “thinking like a lawyer” that is supposedly the fort of Langdell’s method,” “there has been little discussion of reading materials” at 44).

75 See Havighurst, supra note 64 at 26.76 See Fabio Arcila Jr, “The Future of Scholarship in Law Schools” (2015) 31:1 Touro L Rev 15

at 22–23.

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II. THE PEDAGOGY OF LEGAL SCHOLARSHIP

In Part I of this paper, I identified a lack of interest towards the peda-gogy of legal scholarship. I now wish to provide an answer to the pressing question of why we — educators or soon-to-be educators — should care about this. In a nutshell, we should care because the future of legal edu-cation depends on how tomorrow’s scholars experience, transform, and even produce today’s scholarship. In Part II, I delve deeper into the con-nections between pedagogy and legal scholarship. I argue that teachers have the power to shape their students’ understanding of what counts as legal research through the many connections that exist between teaching, learning, and conducting research.

A. Shaping Students’ Understanding of Legal Scholarship

Teachers shape their students’ understanding of legal scholarship in two different ways. I have hinted at the first one earlier and will not spend much time discussing it further.77 Teachers write having an audience in mind and refer to their (and their colleagues’) writing as they teach. Especially in their first year, students are a captive audience and “ultimate consumers [who] have no choice and must purchase whatever the teacher requires.”78 Thus, we should care about what students “consume” when we teach and pay attention to them as an audience when we write. Chemerinsky sums it up nicely:

Above all, law professors are educators of students, and professors can educate students at institutions beyond their own by what they write and publish.

…I should be clear that I am not saying that all writing is to be taken

equally. There must be quality determinations, and quality certainly should be assessed based on the amount of original analysis. My point is simply that this [students, NDLR] is a relevant audience, but one not generally given much weight today in the legal academy (or at least in its elite circles).79

The second way in which teachers shape their students’ understanding of legal scholarship is by reconciling the two traditional poles of teaching

77 See Part I(a), above.78 McDowell, supra note 37 at 267.79 Chemerinsky, supra note 37 at 887. See also Bryden, supra note 17 at 646–47.

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and scholarship and enabling students to actively take part in the pro-cess of producing scholarship. This account of teaching and scholarship as mutually supportive acts within law school emphasizes the pedagogical value of scholarship, not merely as an instrument that supports teaching in the classroom, but above all, as a means for students to shape the law by themselves, before and after they graduate.

Robson, for example, identifies four categories of synergies between scholarly and pedagogical endeavours: the doctrinal (an “identity between what we teach and what we write”), the theoretical (“theories provid [ing] tools for understanding, applying, and reforming the law”), the methodo-logical (drawing from teaching methods to assist in writing, and vice versa), and the professional (matters that are relevant to the practice of law as a whole).80 These synergies, Robson says, can make one better and even happier at both teaching and writing.81 In other words, they will eventually benefit one’s students.

Defining teaching and scholarship as two distinct functions of the pro-fessorial body hides their connections and conversely emphasizes their inherent tension. In the next section, I briefly expose the underlying roots of this tension. I then focus on the connections that support the account of scholarship I just described.

B. Unravelling the Tensions Between Teaching and Researching

Two distinct but overlapping sets of circumstances generate tension between teaching and researching. The first cause of tension lies in law schools’ governance, in particular the disproportionate devotion of resources towards scholarship,82 combined with “largely inconclusive” empirical evidence on the relationship between teaching and scholarship.83

80 Ruthann Robson, “Enhancing Reciprocal Synergies Between Teaching and Scholarship” (2015) 64:3 J Leg Educ 480 at 484ff.

81 Ibid at 491.82 See McDowell, supra note 37 at 265; Macdonald, “Cyber-Law-Journal”, supra note 24 at 354.83 Robson, supra note 80 at 480–83 (Robson cites several empirical studies to support her

observation). See e.g. Deborah Jones Merritt, “Research and Teaching on Law Faculties: An Empirical Exploration” (1998) 73:3 Chicago-Kent L Rev 76; James Lindgren & Allison Nagelberg, “Are Scholars Better Teachers?” (1998) 73:3 Chicago-Kent L Rev 823; Fred R Shapiro, “They Published, Not Perished, But Were They Good Teachers?” (1998) 73:3 Chicago-Kent L Rev 835; Benjamin Barton, “Is There a Correlation Between Law Professor Publication Counts, Law Review Citation Counts, and Teaching Evaluations? An Empirical Study” (2008) 5:3 J Empirical Leg Stud 619; Tom Ginsburg & Thomas J Miles, “The Teach-ing/Research Trade-Off in Law: Data from the Right Tail” (2015) 39:1 Evaluation Rev 46.

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In other words, good scholars are not necessarily good teachers but they are rewarded primarily for being good scholars.84 Forcese explains in an interview with the Canadian Bar Association’s National Magazine that law schools consider teaching to be a subordinate consideration for promo-tion: “[b]asically, the only concern is you’re not screwing up completely. But if you [are] an incredibly good teacher, but an unproductive researcher, your tenure prospects are remote.”85 This echoes persistent criticism that most scholarship comes from authors facing the constant torments of a “publish or perish” approach to academic hiring.86 Similarly, doctoral students must go through the nerve-racking experience of meeting the requirements of their program and building a solid research agenda, but with less emphasis on improving their teaching skills.87 While I would cer-tainly not go as far as to say that academic employers do not value teach-ing portfolios, we do tend to assume that doctoral students will naturally learn how to teach.88 What is often missing from graduate legal education are the systematic, principled, and scientific means to do so.

The second cause of tension runs deeper and lies in the very nature of scholarship. Best described as a “tension between a life in the university and a life outside it,”89 it assumes that professors teach in the interests of their students as future lawyers, but produce scholarship only in their own intellectual interests and sometimes those of their academic col-leagues.90 Justice Barak-Erez of the Supreme Court of Israel, for instance, distinguishes judicial writing from academic writing by suggesting that:

84 See Marina Nehme, “The Nexus Between Teaching and Researching: Easier Said than Done” (2012) 22:2 Leg Education Rev 241 at 243ff (for an overview of this complex relationship).

85 Leo Singer, “Shaking up the Academy”, National Magazine (Spring 2016), online: <www.nationalmagazine.ca>.

86 See John FT Murray, “Publish and Perish-By Suffocation” (1976) 27:4 J Leg Educ 566 at 567.87 See Heringa, supra note 16 at 174. 88 See Derek Bok, “We Must Prepare PhD Students for the Complicated Art of Teaching”,

Chronicle of Higher Education (11 November 2013), online: <www.chronicle.com>. See also Crispin Taylor, “Heeding the Voices of Graduate Students and Postdocs” in Chris M Golde & George Walker, eds, Envisioning the Future of Doctoral Education: Preparing Stewards of the Discipline Carnegie Essays on the Doctorate (Stanford: Jossey-Bass, 2007) 46; Joseph Weiler,

“On My Way Out — Advice to Young Scholars II: Career Strategy and the Publication Trap” (2015) 26:4 Eur J Intl L 795 (for the challenges of doctoral programs).

89 Anthony T Kronman, “Foreword: Legal Scholarship and Moral Education” (1981) 90:5 Yale LJ 955 at 957.

90 Ibid. See e.g. John S Elson, “The Case Against Legal Scholarship or, If the Professor Must Publish, Must the Profession Perish?” (1989) 39:3 J Leg Educ 343 (“[b]ecause their primary attention is devoted to individual scholarly pursuits, teachers have little time and energy

Beyond the Textbook 407

[A]cademics write mostly for the professional academic community, and mainly for a subgroup within it — the specialists in their discipline …. Gen-erally, academics need not be concerned with their product’s accessibility or applicability to the public.91

Evidently, this assumption about the nature of legal scholarship makes it difficult to design materials aimed at students because it does not recognize nor value their interest in good scholarship.92 The disconnect becomes more acute as students bear the financial costs of research through tuition but cannot be “persuaded that legal scholarship is import-ant and that it contributes to the classroom experience.”93 More funda-mentally, this account of a teacher’s role ignores the many connections that exist between teaching and scholarship as well as the role that stu-dents themselves may embrace in the process. As Macdonald wrote:

Debates over the merits of how legal scholarship is expressed must con-tinually reflect the purpose of academic legal scholarship itself. There is no product of legal scholarship that can be divorced from the ongoing process of teaching and learning the law to which it refers. All forms of expression, whether written or oral, engage both professor and student in an andragogical dialectic.94

Taking these connections seriously leads to a better understanding of scholarship as a pedagogical tool. Too often, we treat effective teaching as growing out of scholarship — a benefit that occurs only occasionally when the researcher succeeds in conveying newly discovered knowledge.95 Teaching, however, “shapes both research and practice. Viewed from this perspective, a more comprehensive, more dynamic understanding of scholarship can be considered.”96 By acknowledging this “scholarship of

for collaborating with the rest of the faculty on the research, development and evaluation of a curriculum that is capable of meeting students’ professional needs” at 355).

91 Barak-Erez, supra note 27 at 271.92 See Chemerinsky, supra note 37 at 887; Bryden, supra note 17 at 646–47.93 McDowell, supra note 37 at 265.94 Macdonald, “Cyber-Law-Journal”, supra note 24 at 390. See Rosalie Jukier, “If It’s Not

Impossible, It’s Not Worth Doing: Rod Macdonald’s Vision of Legal Education” in Richard Janda, Rosalie Jukier & Daniel Jutras, eds, The Unbounded Level of the Mind: Rod Macdon-ald’s Legal Imagination (Montreal: McGill-Queen’s University Press, 2015) 198. Macdonald believed that legal education occurs “both inside and outside the law faculty, formally and informally, in a variety of sites and through a variety of media” (ibid at 200).

95 See Ernest L Boyer, Scholarship Reconsidered: Priorities of the Professorate (New Jersey: Carn-egie Foundation for the Advancement of Teaching, 1990) at 16.

96 Ibid.

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teaching,”97 we alleviate the tension between the two primary functions of a law professor, and we equip students with the right tools to participate in the production of knowledge.

C. Teaching and Researching as a Collaborative Endeavour

The power of law professors to shape their students’ understanding of legal scholarship goes beyond the mere selection of reading materials. In a foreword to a symposium on legal scholarship held at Yale Law School, Anthony Kronman argues that law professors have a moral responsibil-ity to prevent students’ cynicism towards advocacy, “through the way in which [they] bring … [their] scholarship … into the instructional process carried on in the classroom.”98 Kronman writes that legal scholarship amounts to a search for the truth whereas advocacy can only reveal it acci-dentally through the invisible coordination of several advocates — hence the need for professors to bear the “distinct values” of scholarship in the classroom and encourage their students to look for the truth themselves.99 While I do not necessarily subscribe to Kronman’s clear-cut compart-mentalization of scholarship and advocacy,100 I think he is right to pro-mote a mutually supportive view of teaching and scholarship as a “fruitful collaboration based on a cooperative division of labor.”101

The collaborative endeavour of teaching and researching takes many forms. First, scholarship can improve teaching.102 Empirical evidence may not show a definite and positive correlation103 but undoubtedly, “[w]riting is an act of creation and clarification” and a “powerful prod to the

97 Ibid. 98 Kronman, supra note 89 at 967. 99 Ibid at 963. 100 As it appears from Part III, below.101 Kronman, supra note 89 at 958 (Kronman’s view echoes Freire’s conception of the teacher-

student relationship as co-investigators who embrace their own consciousness). See Paulo Freire, “Pedagogy of the Oppressed” in Steven M Cahn, ed, Classic and Contemporary Read-ings in the Philosophy of Education (Oxford: Oxford University Press, 2012) 379.

102 See Kane, supra note 25 at 14; Chemerinsky, supra note 37 at 882–83. In the same vein, Edwards says in his interview with Collins that “even if most law journal articles are not widely read, law reviews nonetheless have educational value: Law professors who publish their writings often pursue research that supports their law teaching, and these professors may also use their published works to supplement class assignments” (Collins, supra note 52 at 649).

103 Supra, note 83.

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expansion, modification, and creation of mental structures.”104 If writing helps students understand the law, it can surely help professors teach the law too. As Robson points out, “we can draw on the methods we use in teaching to assist our writing and the methods we use in writing to improve our teaching. Paying attention to these occasions can reinforce the habits of synergy.”105 At the substantive level, writing in specific areas can legitimize the development of a certain body of scholarship and recast law schools’ agenda, with significant implications for their curriculum.106

Connections between teaching and research also arise when stu-dents replicate what they see from their professors, in their legal writ-ing class107 or elsewhere. Professors will inevitably tend to teach legal writing by relying on their own ways of structuring a paper.108 If today’s scholarship is too doctrinal, too obscure, or too riddled with footnotes, and if we think that is a problem, then tomorrow’s scholarship will likely suffer from the same conditions unless we encourage students to write better and we do so ourselves.109

Finally, connections can arise from an explicit reversal of the roles of professor and student. I recall a graduate student seminar I attended in which a McGill professor had circulated one of his own draft papers for us to read and comment. We spent quite a bit of time discussing it in class, and I found the experience deeply unsettling. For the first time in my legal education, a professor assumed that I could provide meaningful feedback on his own work (despite my lack of expertise in the substantive topic of the paper). While I do not pretend to know precisely what my professor was trying to achieve by giving us a sample of his work for review, the

104 Chet Meyers & Thomas B Jones, Promoting Active Learning: Strategies for the College Class-room (San Francisco: Jossey-Bass, 1993) at 24.

105 Robson, supra note 80 at 487.106 See e.g. Kasirer, “Les obligations”, supra note 33 at 460.107 See Jukier & Glover, supra note 7.108 See Robson, supra note 80 at 488; Macdonald, “Law and Learning”, supra note 69 (“[w]e

validate our own impoverished research by encouraging students to mimic our exhibition-ist scholarship” at 15).

109 See Parker, supra note 71 at 661. Law reviews also provide an opportunity for some law students to learn about good scholarship from their teachers. See Macdonald, “Cyber- Law- Journal”, supra note 24 (“[w]hen we submit to a student-edited law journal, we should understand the editorial process as an andragogical moment. Why shouldn’t our assump-tion be that student editors are learning the craft of reading, evaluating, critiquing and editing legal texts? These are key legal skills and that is one reason why we give students credit for learning them as law journal editors” at 376–77).

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exercise nonetheless changed my perspective of the relationship between teacher and student.110

I concede that the tug-of-war between teaching and researching will not end anytime soon, especially given law schools’ limited financial resources. But by acknowledging their conceptual ties, we can bring stu-dents’ learning to the forefront. Scholarship is no longer an individual endeavour divorced from what happens in the classroom but something that students can experience, transform, and even produce themselves.

III. THE SITES OF LEGAL SCHOLARSHIP

In the first two parts of this paper, I argued in a somewhat abstract fash-ion that we should pay attention to scholarship’s educational value — by improving existing legal scholarship through more student-friendly materials,111 and by expanding the notion of legal scholarship to include all forms of expression between students and their professors.112 In Part III of this paper, I briefly identify sites in which this conceptual turn towards students’ empowerment in legal scholarship can happen. These sites pro-vide valuable opportunities to enhance students’ learning by enabling them to find their own voice and welcoming these voices as an integral part of the scholarly landscape.

Turning our attention to the sites of legal scholarship allows us to bet-ter understand how legal knowledge is disseminated and who should act as producer and consumer. The few examples that follow should, how-ever, be taken for what they are: mere examples. As I mentioned in the introduction of this paper, my contribution must be understood in the context of the pedagogical breakthroughs currently being studied, tested, or implemented in law schools. In the end, it belongs to the actors behind

110 A similar reversal occurs when student-editors make suggestions to law professors who have submitted their work for publication. Leclair writes that “the students [of Queen’s] that have worked on my manuscripts have done a superb job. Ninety-nine percent of the time, their suggestions have greatly enhanced my paper’s quality …. I am extremely grate-ful to them all. And I can assure them that their behaviour is a constant reminder of the respect that I, as a law teacher, must always show toward my students” (see Leclair, supra note 43 at 401). But see Potuto, supra note 66 (for a considerably more critical account of the work done by student editors, where Potuto admits to writing her critique as a “cath-arsis” at 610).

111 See Chemerinsky, supra note 37 at 886.112 See Macdonald, “Cyber-Law-Journal”, supra note 24 at 390.

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those initiatives to create and define the sites in which this conceptual turn will unfold.

First, many technologically advanced and collaborative tools allow for greater interaction within a community, thus increasing students’ input in the scholarly work that law schools produce or the materials that they use. In this regard, legal blogs need no introduction.113 They proliferate as

“[m]ore law students and faculty members are finding their voices online and staking out intellectual arguments and territories.”114 Countless law professors manage legal blogs and produce innovative forms of academic discourse that complement traditional scholarship115 and sometimes even find their way into judicial decisions.116

Blogging heralds what Daly calls the “new model of academic engage-ment” — disseminating academic knowledge by technological means.117 But blogging can do more than simply provide law professors with new means to express their own ideas. It can also increase students’ input in the pro-duction of legal scholarship. Many Canadian law schools welcome the con-tributions of their students to the blogs that bear their name.118 Osgoode Hall’s The Court, for example, publishes commentaries and analyses of the

113 See the proceedings of the symposium on bloggership and scholarship held at Harvard’s Berkman Center for Internet and Society: “Bloggership: How Blogs Are Transforming Legal Scholarship” (2006) 84:5 Washington UL Rev 1025ff. See also Anne-Sophie Chambost, ed, Les blogs juridiques et la dématérialisation de la doctrine: Actes de la journée d’étude organisée par le Centre de théorie et analyse du droit le 16 juin 2014 (Paris: Librairie générale de droit et de jurisprudence, 2015); Guilhermont, supra note 41.

114 Mark Engsberg, “The Coffee House Effect: Books, Blogs and Legal Scholarship” (2011) 19:1 Australian L Librarian 5 at 7.

115 See Peter W Martin, “Possible Futures for the Legal Treatise in an Environment of Wikis, Blogs, and Myriad Online Primary Law Sources” (2016) 108:1 Law Libr J 7 at 28–29.

116 See Giroux c Gauthier, 2016 QCCS 724, [2016] JQ no 1451 (QL) at para 29, n 10, citing Paul Daly, “Administrative Law Matters” (2016) Paul Daly Administrative Law Matters (blog), online: <www.administrativelawmatters.com>. See also Guilhermont, supra note 41 at 195–99; Paul Daly, “Legal Academia 2.0: New and Old Models of Academic Engagement and Influence” (2015) 20:1 Lex Electronica 39 (for accounts of how academic involvement through blogs and social media finds its way into judicial decisions).

117 Daly, supra note 116 at 44. See also Guilhermont, supra note 41 (“[l]a blogosphère juridique produit une nouvelle forme de littérature, en même temps qu’une nouvelle façon d’écrire pour les juristes” at 172). Guilhermont asserts that the legal blogosphere produces a new form of literature, as well as a new method of writing for lawyers [translated by author].

118 See Jennifer Koshan, “Blogging and Legal Education” (5 June 2015), ABlawg, supra note 6 (for an overview of various initiatives in Canadian law schools). See Peter Black, “Uses of Blogs in Legal Education” (2006) 13 James Cook UL Rev 8; David IC Thomson, Law School 2.0: Legal Education for A Digital Age (Newark, NJ: LexisNexis, 2009) at 89 (on blogging and legal education generally).

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work of the Supreme Court of Canada. The blog is “edited and staffed by students of the Osgoode Hall Law School, under the supervision of a faculty editor-in-chief.”119 In the same vein, the University of Calgary’s ABlawg features “commentary by faculty members, sessional instructors, research associates at [their] affiliated institutes, and students.”120 Pro-fessors Adam Dodek and David Tanovich recently explained how they ask students in their ethics class to “write short analytical papers, along the lines of the blogs that appear … on Slaw, or newspaper op-eds,” noting that

“[t]he work of these students deserves a broader audience.”121 In the same vein, consider the project of “crowdsourced coursebooks,”

designed by two Oklahoma professors. Their model consists of a web plat-form that allows for markups, comments, and other contributions from a large group of people, both professors and students, within a single docu-ment.122 Others teach on the basis of an “Own Your Course” model, har-nessing students’ efforts to crowdsource teaching materials, distinguish information from knowledge, and convey that knowledge to their peers clearly and concisely.123 By encouraging “an ever-growing community of authors to build textbooks that, like Legos, can be taken apart and recom-piled in limitless ways,”124 crowdsourcing moves beyond the producer/con-sumer paradigm of traditional teaching materials, and creates an entirely new site for legal scholarship: better materials for students, perhaps — but more importantly, their own materials.

Blogging and crowdsourcing embody the notion of legal scholarship as a collaborative effort in which undergraduate students, graduate students, and professors are all expected to produce meaningful scholarship and to

119 “About Us”, The Court, supra note 5.120 “About”, ABlawg, supra note 6.121 Adam Dodek & David Tanovich, “The Perspectives of Future Members of Our Profession”

(18 April 2016), Slaw (blog), online: <www.slaw.ca>. Slaw published some of those students’ pieces during the 2016 Student Week.

122 Stephen E Henderson & Joseph Thai, “Crowdsourced Coursebooks” (2014) 51:4 Alta L Rev 907 [Henderson & Thai, “Crowdsourced Coursebooks”]. See also Stephen E Henderson & Joseph Thai, “Teaching Criminal Procedure: Why Socrates Would Use YouTube” (2016) 60:3 Saint Louis ULJ 413 at 434–38. See Stephen M Johnson, “The Course Source: The Casebook Evolved” (2016) 44:3 Capital UL Rev 591 (for other thoughts on the design of casebooks).

123 See “Pierre-Emmanuel Moyse: Owning Scholarship”, McGill Faculty of Law (blog), online: <www.mcgill.ca>. Wikis (collaborative web pages) serve similar purposes. See also Beth Simone Noveck, “Wikipedia and the Future of Legal Education” (2007) 57:1 J Leg Educ 3; E Johnson, supra note 31 at 53–64; John C Kleefeld & Katelyn Rattray, “Write a Wikipedia Article for Law School Credit — Really?” (2016) 65:3 J Leg Educ 597.

124 Henderson & Thai, “Crowdsourced Coursebooks”, supra note 122 at 918.

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participate in the collective discussion that ensues. As Noveck explains, “[w]orking together fosters greater individual learning by making stu-dents — and their teachers — active producers of expertise rather than passive consumers of information.”125 What happens in the classroom is to some extent up to the students, and the scholarly output of a law school becomes more diversified as a result of the students’ involvement.

But students are not simply law specialists in the making: they are also citizens equipped with a unique voice and valuable opinions about the world that surrounds them. We should pay attention to these voices. Many law professors speak and write in the media about a variety of topics. They clarify and analyze legal matters such as the constitutionality of a statute about to be passed or the underpinnings of a recent court decision. They speak on politically sensitive topics.126 If we accept this as a legitimate role for law professors, why should we treat law students differently? They are equally able to interact with their fellow, non-legally trained citizens. These interactions matter if we are to take seriously the expansive view of legal scholarship set out in this paper.

Law students interact with the public on a regular basis. Most issues of public interest can benefit from their unique perspective. How many times have we, as law students, been called upon by our families and friends to comment on the news from our legal perspective?127 It does not matter to them whether we are law students or law professors, or beginners or experts in the field. In a more formal setting, students also engage with

125 Noveck, supra note 123 at 4.126 Daniel Turp and a team of law students from the Université de Montréal recently chal-

lenged the federal administration’s decision to honour a contract with Saudi Arabia for the sale of military vehicles. See Benjamin Shingler, “Saudi Arms Deal with Trudeau Gov-ernment Leaves Daniel Turp ‘Astonished’”, CBC News Montreal (13 April 2016), online: <www.cbc.ca>. The Federal Court dismissed the case in January 2017 but Turp’s team has filed an appeal. See Turp v Canada (Foreign Affairs), 2017 FC 84, 21 Admin LR (6th) 13. This example blurs the line between the “legal” and “political” aspects of advocacy by law pro-fessors. It also raises many interesting questions on the value of clinical legal education, particularly where the professor remains the “lead figure” of the project. See also Anna E Carpenter, “The Project Model of Clinical Education: Eight Principles to Maximize Stu-dent Learning and Social Justice Impact” (2013) 20:1 Clinical L Rev 39 at 54.

127 I am not, of course, referring to formal legal advice and other professional acts restricted to registered advocates or solicitors. See e.g. An Act Respecting the Barreau du Québec, CQLR 2016 c B-1, s 128. I do point out, however, that the benefits of law societies’ monop-oly over legal services should not remain unquestioned, and its impact on legal education ought to be discussed. See e.g. Thomasset & Laperrière, supra note 13 (in Canada); “The Legal Profession’s Monopoly Over the Practice of Law” (2014) 82:6 Fordham L Rev 2563 (in the United States).

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the public through op-eds and other media interventions. When Aurélie Lanctôt writes about the impact of budget cuts on women in Quebec128 or criticizes the reluctance to use the word feminism,129 she wears many hats, including that of a law student. She brings her experience in law school and the knowledge she presumably acquired there into the public sphere. Nobody would suggest that she should wait until the end of her legal train-ing to do so, nor that she should limit herself to issues of a “legal” nature.

The bottom line is this: encouraging undergraduate students to work together to produce teaching materials, to write on topical issues, or to take part in the public debate improves their learning by structuring their thought in a more effective way.130 It also sends the important message that their voice matters just as much as their professors’. This, I argue, creates more fruitful, inclusive, and pedagogical sites of legal scholarship.

CONCLUSION

Questioning the role of scholarship in undergraduate legal education leads to a better understanding of its pedagogy and the creation of new sites for student empowerment in the production of knowledge. This, however, is only the beginning. Some pedagogical innovations in the classroom will prove more effective than others in creating those sites. But all innova-tions rest on a greater awareness of “the complex relationship between legal research, legal education and legal literature.”131

The educational account of legal scholarship set out in this paper still encompasses teaching materials in the traditional sense. Textbooks, for example, should be “inspirational and aspirational,” and we should spend time and effort to make sure they are.132 But it also goes beyond this some-what simplistic notion of an object that students consume. Connections between teaching and scholarship generate invaluable opportunities for students to find their own voice, not only as students in the classroom, but also as scholars outside the classroom. We must approach legal schol-arship from this distinct perspective.

128 Aurélie Lanctôt, Les libéraux n’aiment pas les femmes: essai sur l’austérité (Montreal: Lux, 2015).129 See Valérie Gaudreau, “Pas peur du mot féminisme”, le Soleil (4 March 2016), online: <www.

lapresse.ca>.130 See the text accompanying note 104. 131 Twining, supra note 31 at 89.132 Stolker, supra note 10 at 173.

Beyond the Textbook 415

This discussion is not simply about the future of legal scholarship. It is also about the future of law schools generally. Harry Arthurs recently said that “[t]he future of law schools … depends on who controls know-ledge.”133 He then asked a crucial question: if the academy must be free to

“collect, critique, produce and disseminate knowledge” as it thinks best, how should it use that freedom?134 I think that law schools should start by considering students as their allies in this mission.

We expect students to actively engage with legal scholarship in the class-room, yet we spend all of our time debating what good legal scholarship looks like in the eyes of judges, lawyers, or academics. Today’s legal edu-cation does not merely constrain students’ understanding of legal scholar-ship — it often excludes them from the process altogether. But there can be no monopoly over legal knowledge.135 Students are scholars in many ways, and the future of legal education may already rest in their hands.

133 Arthurs, “Three Visions and a Prediction”, supra note 2 at 711.134 Ibid.135 See Roderick A Macdonald, “Academic Questions” (1992) 3:1 Leg Education Rev 61 at 72; E

Johnson, supra note 31 at 49–50.